§ Order for Second Reading read.
§ THE EARL OF SELBORNE
My Lords, in asking you to read this Bill a second time, I must make a special claim on your indulgence. This Bill deals with a portion of the very difficult and complicated ecclesiastical law of this country, and in your Lordships' House sit so many special experts on the subject of this law that I have special need of your indulgences It is now 24 years ago since the late Archbishop of York (then Bishop of Peterborough), in a speech equally remarkable for its historical learning and for its eloquence, brought before your Lordships' House the subject of the condition of the patronage laws, and he so impressed your Lordships with the fact that there were evils which existed, and there were remedies which were practical, that he induced you to appoint a Select Committee to inquire into these laws, and to report. That Select Committee was composed of some of the strongest lawyers in your Lordships' House, and it was altogether what is known as a strong Committee. Its Report has always been looked to as one of special authority on this subject. That Select Committee reported, and the attention which their Report called to this subject resulted in the appointment in the year 1878 of a Royal Commission. That Royal Commission again went over the ground which your Lordships' Select Committee had travelled. It endorsed all the conclusions of that Select Committee, and added other recommendations of its own. Since that period no less than 20 Bills dealing with one branch or other of this subject have been introduced in one or other House of Parliament. These Bills have had, in their respective Houses, varying fortunes, but they have all enjoyed the common lot of never having passed into law. Therefore, my Lords, whereas this question was proved to your satisfaction by Dr. Magee to be urgent 24 years ago, I do not think anyone will dispute that within those 24 years that have passed the subject has become more urgent still. The Bill which I am asking your Lordships to read a second time is founded mainly on the Reports of that Select Committee 89 and that Royal Commission, and I would ask your Lordships' special attention to this fact: that neither in the reference to the Select Committee nor in that to the Royal Commission was there any reference to questions of doctrine or ritual. Just as that Committee and that Commission were not concerned with those phases of Church discipline which are comprised within the terms "doctrine and ritual," so this Bill, which is mainly founded on the Reports of that Committee and Commission, does not deal with doctrine or ritual either. Neither, my Lords, can I pretend that in those departments of ecclesiastical law which are outside doctrine and ritual this Bill attempts to deal exhaustively with the whole field. It does attempt to deal with changes which seem most urgent, for which remedies are most possible and most practicable, and on which public opinion has almost unanimously set its mark of approval. There are three branches of this Bill. The first deals with the transfer of rights of patronage of a benefice, the second with the powers of bishops to refuse institution, and the third with the Amendment of certain provisions of the Pluralities Act of 1838 as amended by the Pluralities Acts Amendment Act of 1885. In the first place, I would ask your Lordships' attention to those provisions of the Bill which deal with the transfer of rights of patronage of a benefice. Your Lordships are familiar with the distinction between an advowson and a presentation. An advowson is the perpetual right of presenting to a benefice as often as vacancies occur. It is a right which may be sold or transferred like any other property. Thus, one presentation, or more, may be, as it were, cut out of the advowson and transferred. A next presentation, on the other hand, is the only interest which is usually sold or transferred separately. The object of this Bill in this respect may be stated to be to prohibit any subdivision of the right of patronage, to prevent any temporary transfer of responsibility inherent in the ownership of an advowson—in short, my Lords, to stop the sale of next presentations, but not to stop the sale of the whole advowson. Now, this proposal is met with criticism from two opposite quarters. One class of 90 critics assert that such a proposal is merely tinkering with a great evil, and that the sale of advowsons should be prohibited altogether. Now, my Lords, if such a critic proposes merely to do this and nothing else, I have no hesitation in saying that the consequences would be simply deplorable. Consider, a man may be the owner of a certain amount of property in a parish, and the owner also of the advowson. He becomes impoverished and sells his property, but he is not, according to the proposal of this class of critics, allowed to sell his advowson. He may become a pauper, he may go into the workhouse, he may emigrate and go to the uttermost bounds of the earth, but the advowson clings to him. His family may lose all connection with the parish, all interest in it, yet they cannot sell the right of advowson, and I think there is no one in your Lordships' House who would not agree that the last state of patronage in that parish would be far worse than the first. If that critic, on the other hand, proposes to remodel and recast the whole patronage system of the Church of England, I think I may say with confidence, even in the presence of the great experts on ecclesiastical law in your Lordships' House, that that critic's task would be neither easy nor simple. All I have to say on that point is, that it is entirely outside the purpose or purview of this Bill, and I am expressing my own opinion only in this matter when I say that public opinion is very far from having arrived at the point at which such a change is possible, even if, which I am not prepared now to admit, it were otherwise desirable. The other class of criticism is to the effect that such legislation as is proposed in this Bill is an altogether unnecessary and inexpedient interference with the rights of property. Now, my Lords, I think that that criticism, which has been heard very frequently and rather loudly throughout the country, can be most fully met. I will quote, first of all, from the Report of the Select Committee of your Lordships' House of 1874, who expressed the opinion that—All legislation effecting Church patronage should proceed upon the principle that such patronage partakes of the nature of a trust to be exercised for the spiritual benefit of 91 the parishioners, and that whatever rights of property originally attach or in process of time have attached to patronage must be always regarded with reference to the application of this principle. All exercise of the rights of patronage, without due regard to the interests of the parishioners should, so far as possible, be restrained by law, and the law should also aim at imposing such checks on the exercise of his choice by the patron as should prevent, as far as possible, the appointment of unfit persons to the cure of souls.Now, those words were in their entirety endorsed by the Royal Commission of 1878–79, who added further—this is the exact substance of what they added—that—They found that while the sale of the right of patronage had been from ancient times allowed with a greater or less degree of freedom by the Legislature, yet the Legislature had from time to time interfered to regulate the conditions of such sale on grounds of public policy, and they referred in particular to the Statutes 31 Eliz., c. 6, and 13 Anne, c. 11.I will quote briefly from that Statute of Elizabeth, because I think that Statute by itself a complete answer to this kind of criticism. Section 5 of that Statute enacts—That if any person or persons, bodies politick and corporate, shall or do at any time after the end of forty days next after the end of this Session of Parliament, for any sum of money, reward, gift, profit, or benefit, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurances, of or for any sum of money, reward, gift, profit or benefit whatsoever, directly or indirectly, present or collate any person to any benefice with cure of souls"—and so on. "That the presentation shall be void, and penalties shall attach.The Statute of Anne referred to is only a completion and addition in the same sense. In short, my Lords, the law has indicated this to be its view: that the right of presentation is a trust and a property, but the property is incidental to the trust and not the trust to the property. Now, my Lords, the sale of next presentations contrives to combine the enjoyment of the property with the evasion of the trust, and that is the reason why, in the Bill proposed for your Lord-ships' consideration to-day, it is intended to make the sale of next presentations Impossible. Do not imagine, my Lords, that this is only an abstract and theoretical evil. If you were to refer to the elo- 92 quent speech of the late Archbishop of York, delivered in this House 24 years ago, you would see with what words of caustic indignation he portrayed the abuses of the present practice. I will draw your Lordships' attention to two paragraphs out of the Report of the Royal Commission. Paragraph 11 says—We regret to say that many flagrant cases of abuse connected with sales of advowsons and of next presentations, as well as with exchanges of livings, have been brought before us.And Paragraph 22 says—We are informed that clergymen of good character and repute have been parties to transactions considered by the law as simoniacal.Your Lordships might well inquire how it is possible that clergymen of good repute should have been parties to practices which the law considered simoniacal. But I think I shall be able, in a very few words, to show you in what a state of chaos the law has got in that respect. The ecclesiastical law has always denounced in the strongest way any traffic in the cure of souls; and the Statute law has enforced that, as I have already shown you, on more than one occasion. I will now quote from the speech of the late Archbishop of York, who said—By a process of subtle evasions on the one hand, and of subtle and nice distinctions, such as English law delights in, on the other hand, the laws against simony have been brought into such a state, that it is hard to know what is and what is not simony; and, when we do know this, harder still to say why one particular transaction should be legally simony and another not so. It is simony, for instance, to buy an advowson or presentation when the benefice is vacant, but not when it is full; and yet it is not simony to buy either advowson or presentation, when the incumbent is actually in urticulo mortis. It is simony for a spiritual person to buy the next presentation to a living, and present himself; but it is not simony for him to buy the advowson, then present himself on vacancy, and then to sell the advowson. Nay, it is simony for a presentee to contract to marry a patron's daughter, but not simony for him to contract to marry a patron's sister or niece, or widowed mother-in-law. The force of legal absurdity could hardly, I imagine, go beyond this last distinction. But, my Lords, the practical results of these absurd distinctions are most seriously mischievous. In the first place, they completely destroy all moral sanction for the law of simony. The difference between what this law allows, and what it forbids, is, in most cases, so purely technical 93 and conventional, that it touches no man's conscience; and consequently evasions of a law so utterly unreasonable come to be but lightly regarded. In fact, simony as a legal offence has completely lost its original meaning—as that of the 'execrable and detestable offence of buying or selling spiritual things'—and has come to mean simply the buying or selling of benefices under conditions forbidden by law.If your Lordships have agreed with me in the answers I have endeavoured to give beforehand to the two classes of critics that we have to meet, I will briefly explain to you the provisions of this Bill, in respect of this question of patronage. The first clause, and part of the second clause, are devoted to stopping the sale of next presentations, and making impossible the various methods of evasion by which illegal sales of livings are effected; and the schedule is devoted to rendering definite and precise the declaration against simony, to be taken by a priest on presentation. It is further provided that if any person knowingly makes any false statement in this declaration, he shall be guilty of a misdemeanour and shall be liable to the punishment attaching by law to perjury. I have only ventured to explain these provisions to your Lordships in a very cursory manner, but what I have stated is, in brief compass, the intention of this Bill. I now come to the second purpose of this Bill, which is, of course, largely involved in the question of presentations—the power of the bishops as to refusal to institute. I think he would be a very rash man who would endeavour to present to your Lordships an exact statement of the law in this respect now. One thing only is quite certain, and that is that the clergyman presented must be what is known as an idonea persona. What idoneity consists in is not certain, but it certainly involves that the clergyman presented must be an ordained priest, or capable of receiving ordination before institution, that he should be orthodox in his views, of good morals, and of sufficient learning. But to show you how complicated the whole of this law is, I may say that no lawyers are exactly agreed as to how the case is to be tried if a bishop refuses to institute on the grounds of insufficient learning. At any rate, I may say with the utmost confidence that the law is not clear. It is very complicated, and the processes to which the bishop is liable 94 for the bare performance of his duty may be to him extremely costly. This subject was fully dealt with by both the Select Committee and the Royal Commission, and I think again, with your Lordships' permission, I can best show you the present state of the case as it presents itself to a bishop endeavouring to perform his duty, by quoting from the speech of the late Archbishop of York. He presumed a case where a clergyman has been presented by a patron, and where the bishop and the parishioners of the parish have fair primâ facie grounds for doubting whether the proposed incumbent is a fit man for the cure of souls, and he supposed that the parishioners have come to the bishop and asked the bishop to refuse institution. This is what the archbishop says—Such a bishop must tell the complaining parishioners that there are, indeed, certain specified grounds on which he may refuse to institute a clerk—as, for instance, heresy, immorality, or ignorance; but that the proof even of these is extremely difficult, and that to attempt it he must begin by making himself the defendant in a costly lawsuit; and that when he had done this—when he had braved the terrors of duplex querela and quare impedit—the most likely result will be that he will be saddled with heavy costs, and the parishioners with an obnoxious minister. In addition, however, to this, difficulty in the way of the bishop's discharge of duty, there is this further one, that physical incapacity forms no legal ground of objection.There are, however, some lawyers who dispute that. Continuing, the late Archbishop said—A patron may present a clerk of eighty or ninety years of age—deaf, blind, and with a stutter—to the largest and most important parish in the diocese, and yet the Bishop cannot refuse, on that ground, to institute him. And here I touch on one of the most grievous evils and scandals connected with patronage—I mean the practice of putting into a vacant living the oldest man the patron can find, in order to sell the living over his head.Such being the state of the law, this Bill, in clause 2, endeavours to find a remedy for this most serious evil. It enumerates—it does not pretend to do so exhaustively—some of the more important grounds on which a bishop may refuse institution, and it adds also the ground of "physical and mental infirmity or incapacity," also "pecuniary embarrass- 95 ment of a serious character." And it provides that in every case the bishop, before collation or institution, shall send a notice to the churchwardens of the parish as to the man that it is proposed to collate or institute. I must say, my Lords, that I attach the greatest importance to that small sub-clause; for the first time it gives the parishioners a distinct and legal opportunity of bringing to the notice of the bishop any just cause, of which he might otherwise be ignorant, why the proposed incumbent should not be instituted. Clause 3 provides a court of appeal, to which either the patron or the presentee may go, against the refusal of the bishop to institute. The court is to consist of the archbishop of the province, and a judge of the supreme court appointed by the Lord Chancellor. The archbishop and the judge have special functions assigned to them. The judge is to find whether a fact sufficient in law has been alleged by the bishop as the reason of his refusal to institute. If the judge finds that no such fact sufficient in law exists, then the archbishop is obliged, by this Bill, to direct institution. If the judge does find that such a fact in law does exist, then it is left to the discretion of the archbishop to decide whether that fact is in itself or not sufficient reason for the refusal to institute. Sub-clause 5 abolishes any remedy henceforward in such cases of quare impedit, or duplex querela. Quare impedit, I may remind your Lordships, is the process by which the patron can appeal to the court of Queen's Bench against the refusal of the bishop, with a final appeal to the House of Lords. Duplex querela is the process by which the presentee can appeal to the archbishop's court, with a final appeal, if necessary, to the Privy Council. I now come to the third portion of this Bill—that part which deals with the Amendment of Section 77 of the Pluralities Act of 1838, as amended by the Pluralities Acts Amendment Act of 1885. By section 77 of the Pluralities Act, 1 and 2 Vic., c. 106, it was enacted that if a bishop had reason to believe that the ecclesiastical duties of any benefice were inadequately performed, he might issue a Commission, consisting of four beneficed clergymen of the diocese, to 96 inquire into the matter and report. The incumbent of the benefice in question might add to the Commission one more beneficed clergyman of the diocese of his own nomination. If the Commissioners, or a majority of them, reported that the duties of such benefice were inadequately performed, the bishop was empowered to require the incumbent to nominate a curate, with sufficient stipend, to perform, or to assist in performing, such duties. If, however, the incumbent did not so nominate a curate within three months, the Bishop was empowered to nominate one himself, and to appoint him a stipend, which, however, was not, except in the case of negligence, to exceed half the net annual value of the benefice. An appeal within one month, either as to the requisition or to the appointment, lay to the archbishop of the province. By the Pluralities Acts Amendment Act, 1885, 48 and 49 Vic, c. 54:, "ecclesiastical duties" were, for the first time, defined, and they were defined to mean all duties which the incumbent is bound by law to perform, or which he promised at his ordination to perform, and the performance of which has been required of him in writing by the bishop. The constitution of the Commission is changed, and is to consist of the archdeacon or rural dean, of a member of the cathedral body elected by the dean and chapter, of a beneficed clergyman of the archdeaconry elected by the beneficed clergy of the archdeaconry, and a layman, being a justice of the peace of the county, nominated by the chairman of quarter sessions, or, in default of him, by the Lord Lieutenant. The incumbent may also add to this Commission either a beneficed clergyman of the diocese or a justice of the peace of his own nomination; and there are other provisions for strengthening the authority of this Commission. Clauses 7 and 8 of this Bill propose materially to strengthen those provisions. Clause 7 adds to this Commission two more laymen, one of them being either justices of the peace for the county or barristers or solicitors of not less than 10 years' standing. They are to be nominated by the chairman of quarter sessions, or, in default of him, by the Lord Lieutenant. Clause 8 is of some importance. It proposes to enact 97 that where this Commission has reported that an incumbent of a benefice has been negligent in the performance of the ecclesiastical duties of the benefice—I may, in passing, mention that there is no direction, except by implication, in any of these Acts that the Commission is to report whether an incumbent has been negligent; but such a direction is contained by the implication which I read to your Lordships in the Act of 1838, and that implication is emphasised and made more definite in this present Bill—if the Commission reports that the incumbent has been negligent in the discharge of his ecclesiastical duties, the bishop may at once appoint a curate himself to do the work, without first requiring the incumbent to do so; and, further, he may, if he thinks proper, inhibit the incumbent from taking any part in the performance of those duties. Sub-clause 4, of clause 8, proposes to enact that if such an incumbent is inhibited under this Act he is not to interfere with, or control, the curate in the performance of the ecclesiastical duties of the benefice. There is an appeal against any such inhibition to the same court as is constituted under this Bill to deal with appeals against refusals to institute. Now, my Lords, I do not think it will be difficult for me to show your Lordships that these Amendments of the law are necessary. There can really be only two classes of cases under which such a Commission as this may be appointed. One is the case of an incumbent who is not properly discharging the duties of his parish by reason of physical infirmity. Now, in that case, the Commission will not report that the incumbent has been guilty of negligence, and the appointment of the curate, if the bishop so directs, will still rest with him; and there is no reason that I can see why he should not be as equally competent a chooser of the curate as any other man. But the other case is quite different. That is the case of a man whom the Commission find has been negligent; and I do not think that I am going beyond the mark when I say that a case of negligence of this sort is certain to have been both wilful and persistent. In the case of an incumbent who has been wilfully and persistently negligent in the discharge of his ecclesiastical duties, is it likely that, on com- 98 pulsion by the bishop, he will appoint the best curate to fulfil the duties of the benefice? It is obvious, my Lords, that such an incumbent is not likely to choose the best possible curate, and in the working of these Acts it has been found that as a matter of fact he does not do so. But, beyond that, it has been found, in those cases where a negligent incumbent has refused to appoint a curate himself, and where the bishop has done so, that sometimes an incumbent, who has refused properly to discharge his own duties, is willing and able to prevent the curate properly discharging his duties either. I may say there have been some scandalous cases, in which proper access to the church has been attempted to be denied to the curate by the incumbent who has been found to be negligent, and I believe in one case the incumbent insisted on continuing the services in the church, and forbade the curate to enter it, and the curate had to erect a temporary building just outside the churchyard. Now, my Lords, it is quite evident that such a state of affairs must be detrimental to the spiritual interests of any parish. This Bill proposes that the bishop should have power to inhibit the negligent incumbent from the performance of his ecclesiastical duties; and it proposes to enact that where an incumbent has been so inhibited he shall not interfere with, or control, the curate in the performance of his ecclesiastical duties. The other provisions of this Bill, my Lords, are fit subjects for your careful consideration in Committee; they are subsidiary and supplementary in character, and I will not trespass further on your Lordships' time by attempting to describe them. All I would say, in conclusion, is that this is a bonâfide attempt to deal with needs that were urgent 24 years ago, and which are still more urgent now, and to deal with them by remedies which are practical and possible. I claim also for this Bill that it has obtained for itself the practically unanimous approval of all parties in this country. The claim on the Church of England to fulfil her spiritual functions is ever increasing, and she is ever feeling more and more the deep responsibility of the duties that lie before her. The demand for this Bill has come from the Church, because the 99 Church has felt that unless she was allowed to keep the machinery through which she has to operate in a condition to enable her to perform her duties she was not having a fair chance. The public conscience of this country has responded to this appeal, and public opinion generally, whether of Churchmen or of Nonconformists, has allowed that the claim of the Church to have the machinery through which she has to operate brought into an order in which it can operate is a just and reasonable one. Hence the genesis of this Bill. My Lords, if this Bill is destined to work for the good of the people of this country and for the Church, there is one man more than any other to whom the credit will be due, and that is that famous ornament of your Lordships' House, the late Dr. Magee, to whom I have several times, in the course of my remarks, alluded. It was he who roused the Church to demand the readjustment of her machinery. It has been due to his efforts and his eloquence that the public conscience has been stirred. He has passed to his rest, but his influence is living with us yet, and if this Bill performs these functions, which I believe it will perform, it will be a lasting monument to his work on earth. I beg to move the Second Reading of this Bill.
THE ARCHBISHOP OF CANTERBURY
My Lords, it is not necessary that I should make any long speech on this Bill, because the Bill, after all, is the result of a great many discussions in this House. It follows after several Bills that have passed the House and gone down to the Lower House and have been lost simply from lack of time to discuss them. The bishops have again and again expressed their opinions upon this matter, and again and again have asked this House to consider how very seriously the Church was hurt by want of being able to deal with the abuses now sanctioned by law. The Government at last have been good enough to take up this matter, and I am very grateful to them for what they have done. I do not rise, therefore, to criticise the Bill, but to express my strong sense of the value of it, and my certainty that if it is passed it will work exceedingly well. The Bill certainly does not 100 go so far as many would wish it to go; it does not go as far as to provide for the total abolition of the sale of livings; and I wish with all my heart it were possible to make any such provision; but I do not think that anything more is possible than what the Bill now proposes. I do hot think that the country generally would accept anything beyond what is here laid down as the best mode of dealing with the transfer of patronage. The time may come, perhaps, when the country at large will look upon this question in a somewhat different light, and will say that the mischief, though it be nothing more in appearance than sentimental mischief, to allow so solemn a trust as the trust of a patron to be sold, ought not to continue any longer. However, there can be no question, say what we will about it, that the practice of the sale of livings does lower the clergy in the opinion of their own parishioners very much indeed. We can easily find, if we choose to look, expressions of that feeling in very many parts of the country. But, my Lords, it cannot be denied that the sale of livings is very much less than it used to be, and that the great body of patrons unquestionably do their very best to put proper men into the livings which they hold in trust. I do not know that I can find better appointments to livings than those generally made by the landowners of this country; but there are still a certain class of livings which are perpetually in the market. I wish very much indeed we could keep them out. As it is, this Bill goes a long way to put a stop to some of the abuses which do most harm. As, for instance, it puts a stop to sale by auction. Sale by auction is a kind of insult to the parishioners. It is an evil thing that they should feel that they are put up to the chances of the market. Again, it stops the sale of next presentations, which have been constantly used for the purpose of making the living not subservient to the interests of the parishioners, as it ought to be since it is a sacred trust, but subservient to the interests of the patrons and the patrons only. These things have done harm, and are doing harm, and the Bill goes a very considerable way in the direction of preventing them from doing mischief in the future. I do not know 101 that there is any provision in that part of the Bill which I should wish to alter, in the present state of the feeling of the country; in any particular. I may just mention in passing, that in clause 1, sub-section 3, in the first page, and line 25, there are these words, "or for the resignation of a benefice in favour of any person." That seems to me to abolish or repeal the Act 9th George IV., chapter 94, which is referred to as the Act of 1828 in the schedule. I merely want to point out that there is a discrepancy there, which ought to be set right. I wish to point out the difference in order that attention should be called to it. I have no remarks to make on the rest of clause 1. But clause 2, which deals, not with the transfer of livings, but with the institution of unfit persons, is really the most important clause in the Bill. It is for the first time made possible for a bishop to refuse institution on definite grounds, and on grounds which everyone would at once accept as sufficient to justify such a refusal. In all this I find nothing to criticise or amend, accept that it is a little hard upon a bishop that in such cases on an appeal he should be made a party to the proceedings. The result is, if he does his duty, which is unquestionably quite clear before him, any mistake on his part renders him liable to costs, and the costs may be very considerable. Now, I do not care very much, I confess, to remove the liability of the bishop to costs in all those cases in which the judge pronounces that the facts are not sufficient in law to justify the bishop's refusal. But it seems to me that when a judge does pronounce that the facts are sufficient it is very hard upon a bishop that he should be liable in costs, because the archbishop on appeal thinks that he has not rightly used his discretion. If he has discretion, as he must have in the nature of his office, I think he ought to be free from any consequences which might follow in consequence of the archbishop differing in opinion from him. There is nothing else in clause 2 that I should like to call attention to, except sub-section 6 at the bottom of page 3. It is there proposed that—Where the presentation is made to an archbishop the archbishop of the other pro—vince, whether Canterbury or York, and such judge as aforesaid shall constitute the court.102 It is quite out of accordance with all ecclesiastical precedents that there should be an appeal from one archbishop to another, and I think the form in which it stood in the beginning is very much to be preferred—namely, that if the appeal is from the archbishop himself, acting as bishop, it should be to a court consisting of the judge appointed by the Lord Chancellor and three bishops of the province, appointed by the Queen. It is a pity, I think, to depart from ordinary precedent in a matter of this kind. It disturbs the clergy a great deal, and it is not worth while to disturb them. This appeal, the form of the appeal, is not sufficient to justify the change from that which has been previously suggested, and I hope that I may be allowed to move an Amendment to that particular subsection. The last part of the Bill has to deal with cases of neglectful clergy—clergymen who neglect their duty. Clause 7 seems to me excellent. I have no criticism to make upon it. Clause 8 is a little wanting, I think, in clearness, because it is not anywhere indicated that there is to be a special report upon negligence in the performance of ecclesiastical duties. If there is a distinction made, which the noble Lord has just now put before us very clearly, it is between cases where the duties are neglected by no fault of the incumbent and in cases where the duties are neglected by his own fault. I think that distinction is perfectly sound, and it is quite right that it should be made, but I think it ought to be more clearly made than it is here. The law as it at present stands gives an appeal to the archbishop, and the appeal is still continued, and I think rightly continued; but it is not to the archbishop, but to the court, and I confess I rather regret that there should be a change in this respect, because the reference of such a question as negligence to the judge is quite a different thing from the reference of such a question to the archbishop, because the archbishop, from the nature of the case, must be well aware of what is meant by "negligent incumbent," and is a far better judge of such a matter than a judge can be. Negligence, strictly speaking, is not a question of fact; it is very much a question of opinion, and the tendency of leaving these things to the judge is very much to create what is often called judge-made 103 law—that is, a series of precedents which settle that this thing is negligent, and the other thing is not negligent, and so on. It is a matter which ought never to take that shape. I should prefer very much indeed that this appeal were to the archbishop alone, as it is in the present law. The fresh power that is given—namely, to inhibit an incumbent, and not merely to require him to appoint a curate, but to appoint a curate without reference to him, is really absolutely necessary. The present law works ill, especially in that respect. The appointment of a curate by the incumbent is very often used as a mere evasion of the sentence of the bishop. He requires a man to appoint a curate, and the man appoints a curate who is not very much benefit to the parish after he has been appointed; and so, too, it is necessary that the bishop should have the power of giving a curate authority to discharge the duty independent of the incumbent, because there are cases—I am speaking from personal experience—in which an incumbent having been required to appoint a curate appoints one and then thwarts him in every possible way. The present law has been, to my personal knowledge, entirely made useless by the power which the incumbent retains of preventing the curate from doing the work for which he was appointed. I remember once that an old clergyman emptied his church and his school by his neglect of his parish. I put it to him, and he said to me—My Lord, I am the best reader and the best preacher in your Lordship's diocese, and if the people will not come to hear me it is their fault, and not mine.The people, however, judged that it was of no use to go and hear an elderly man who could not, with all his pains and care, enable them to follow what he was saying. They said that when they came to attend his church they could not tell in what part of the service he was, and they declined to go. When I issued a commission, and a curate was appointed, the man refused to abide by the result, and then everything that could be done was done to prevent the curate from doing anything whatever in the church. To continue that state of things is obviously absurd, and I am very glad the Bill proposes a remedy in the way it does. 104 I have nothing to remark upon in the rest of the Bill. It seems to me exceedingly well adapted for its purpose, and I am very grateful to the Government, on behalf of the whole Church of England, for having taken up this question, and for having dealt with it as they have. For myself, I have only to say that, though I propose to move certain Amendments, yet I would very much rather lose the Amendments than lose the Bill; and if I am told that the Bill cannot go on with any Amendments, well, then, I shall certainly consent to their being rejected, because I think the Bill is so well worth carrying that even though we might make it better it would be a great mistake to try to make it better at the risk of wrecking it either in this House or the other.
§ LORD HERSCHELL
My Lords, I certainly do not rise with any intention of opposing this Bill. I think some of its provisions, especially the main provisions in clause 2, are likely to be useful and beneficial; but I confess that for myself I am profoundly dissatisfied with the provisions of the first part of the Bill, which relate to the sale of the rights of patronage. The noble Lord who moved the Second Reading of this Bill, divided the critics upon that subject into two classes, for neither of whom manifestly did he entertain much respect. He regards them as a somewhat preposterous people, who did not know anything of the subject. I will deal with his criticism in a moment, but I may be allowed to say that, if I have arrived at certain conclusions on the subject, they have not been hastily arrived at. The late Archbishop asked me to serve on a Committee, which met many times at Lambeth Palace, to consider this subject of the sale of benefices and the best means of altering the law. The present Archbishop of York, and the most reverend Prelate who has succeeded to the See of Canterbury, and the father of the noble Earl who moved the Second Reading of this Bill, were members of that Committee, and we had much discussion on the subject. My Lords, the foundation upon which the provision rests forbidding, so far as it does forbid, the sale of rights of patronage, is that it is a scandalous thing that the sale of the right to present to a benefice should be matter of traffic and barter, that it offends the consciences 105 of many, and is to the great majority of the laity of the Church, as well as of the clergy and the episcopate, a thing highly objectionable and likely to lead to scandal. Now, my Lords, I am unable to see any distinction in point of morals between the sale of the right to present once and the sale of the right to present many times. If it be a wrong thing to receive money for the transfer of the right to present on one occasion, in my view it is a wrong thing of precisely the same character to sell the right to present in perpetuity. And it seems to me that it is an evil thing, because it is, as far as I know, the only case in which the sale of the right of appointment is permitted by law. A trust of this description cannot be made matter of traffic and barter ordinarily, but it is allowed to be made so when it is a trust of the most sacred description, when it is the right to appoint a man who is to be, for many years perhaps, the spiritual guide and pastor of a parish. It was a right which grew up in evil times. No one to-day would dream of giving sanction for the first time to such a right as that. But it seems to me that when you, as is done extensively, draw a distinction between the sale of the right to present on one occasion and the sale of an advowson, you give a fresh legislative sanction, by the very distinction which you draw, to the sale of advowsons. So far from its being a step in the right direction, it seems to me to run dangerously near confirming and sanctioning by legislative authority a practice which no doubt has been submitted to so long because it had grown up in ancient times, but which does not, I believe, accord with the general sentiments and feelings of the people of this country. The most reverend Prelate said that, though the consciences of the British people had arrived at the point that they were prepared to abolish the sale of the right of next presentation, they have not yet reached the point at which they would be willing to abolish the sale of advowsons. I venture to think he is mistaken. I believe the area of opposition to the sale of next presentations is just about as broad as would be the area of opposition to the sale of advowsons. It was a limited opposition, and I doubt very much whether that limit would be enlarged if this Bill had been extended so 106 as to prevent the sale of advowsons. In a vast majority of cases patrons do not want to sell their advowsons, they do not regard them as part of their property to be disposed of in the same manner as any other part of their property. That is not the light in which the vast majority of private patrons regard advowsons. They wish to be able to transfer that patronage to their family, and to those to whom their estates go, but they do not wish to bring it into the market and sell it. Consequently my impression is that, except from those who object to putting any limitations on the exercise of the rights of property in respect to advowsons, you would not find any very large area of opposition to a reform of that description. My Lords, I know that the difficulty was very much discussed, in the Committee to which I have referred, of making a reform of this sort without any compensation to the owners of advowsons. Indeed that was a difficulty which chiefly impressed those who thought it possible to go so far, although the views which I entertained met with some substantial report on that Committee. My Lords, the difficulty, no doubt, is a real one, but at the same time it must be remembered that this Bill does deprive the owner of an advowson of rights which he now possesses at law without giving him any compensation at all. The right of selling a part is as much a right as the right of selling the whole, and therefore the Bill does not steer clear of the difficulty of interfering with the rights of property without giving compensation. I do not say it should give compensation, because I believe the right is one which may be freely interfered with under the circumstances, without a demand for compensation. But, my Lords, if you were to prevent the sale of advowsons altogether, I believe that there, again, you would interfere with property in such a way and to such a degree, following only the lines and principles of this Bill, that might justly be done without giving compensation. There are only a very limited number of owners of advowsons in the country who would think that they had been wronged in the least if there was a provision preventin the sale of advowsons. I admit there is a difficulty which would have to be met, but it seems to 107 me that the kind of equitable treatment which might be meted out in such a case would be to allow a certain number of presentations, say two presentations, to elapse before you forbade the sale. The objection which weighs most with me with regard to this clause is that it seems to give a sanction to that which I cannot help feeling is an evil. Of course, as I have said, the Bill, so far as it deals with sale, goes in the right direction, but I cannot help remarking upon one provision in it which, it seems to me, will wholly fail of effect, and that is subsection 2—It shall not be lawful to offer for sale by public auction any right of patronage, save in the case of an advowson to be sold in conjunction with any manor or hereditament.Now, my Lords, no doubt it may be thought to be something more scandalous if a living is sold by public auction than if it is sold by private contract. But this Bill does not condemn a living being sold by public tender. Under this Bill you may have a place absolutely placarded with bills that a certain living is "for sale," and accompanied by an announcement that tenders will be received by Mr. So-and-So, at such and such a time, and at such and such a place. That is not made illegal by this Act; and it is only the auctioneer with his hammer that is made illegal, and there, again, there seems to me to be a distinction which is not worth drawing. What I want to call attention to is this: that you do not forbid the sale of an advowson if it is sold with a hereditament. What is a hereditament? Any piece of land, however small, is a hereditament. A perch of land—half a perch of land—is a hereditament for the purpose of selling an advowson by auction. Why are these things sold by public auction? Because they get the best price by that means. Do you suppose that any man who wants to sell by auction after this Bill is passed will fail in so doing? What has he got to do? He has only got to find a hereditament to sell with the advowson. Very well! A perch of land, at £10 per acre, costs 3s. 9d. He has only got to sell three-and-ninepenny worth of land with his advowson, and where is your prohibition? He may, perhaps, offer a 40s. freehold with the advowson, and then he 108 would be able to offer as an inducement a vote for the county. Surely, if this thing ought to be prohibited, it ought to be prohibited in some effectual fashion. It is an idle pretence of prohibition when you first of all suppose a man is anxious to do a thing, and you still leave him in a position to do it without the slightest actual impediment. An auctioneer in the habit of selling advowsons would probably buy an acre of land which he would keep on hand for purposes of this sort. He would arrange it out in half-perches, of which there would be 112 to the acre, and which he could arrange to be sold at 1s. 10d. each to the intending seller of the advowson, and he would be in a position to tell the intending seller that he will always be able to sell an advowson even after this Bill passes. I am quite convinced that such a state of things is not the intention of those who framed this Bill, but that seems to me to be the way in which it stands. Of course, I understand what is meant by this clause. It was intended to allow an advowson to be sold in the case of an estate being put up for auction connected with which estate there was an advowson. But that is not what has been done. I quite admit the difficulty of defining what is an estate, and what size of estate you are to define for the purpose of the Act; but it would be far better to do that rather than leave it as it is now, because, as the Bill stands, you could drive—not a coach-and-six, but the whole of the traffic of London through that section of the Act of Parliament the first day it passes into law. Now, my Lords, with reference to the objection of the noble Earl that if you did away with the sale of advowsons you would have cases in which a man sold his estate, and the advowson would be vested in someone unconnected with the land in any way, and would, therefore, be likely to get into the hands of persons who could not well be entrusted with the gift of a living. I cannot help thinking that there is a good deal of exaggeration in that. A vast amount of the patronage of this country is in no way connected with the ownership of land, and the livings are nevertheless given, I believe, by these lay patrons from excellent and good motives, and with excellent results. It need not be land in the parish, or connected with 109 the parish in any way, because, as we know, that although the owner of an estate has not in his hands an advowson in connection with his own estate, he may have in his ownership several advowsons in different parts of the country, and therefore it is not really, as I think, essential to the ownership of patronage that he should be connected always with the ownership of land, and then, after all, you are going to sell to—you know not whom—somebody, perhaps, not friendly to the Church—somebody not likely to care whether a good man is put into the living or not. I do not see that you get any security that the advowson is likely to be better used by the man who purchases than if it were left in the former hands, and if he does not care about it, when the disposition of his property takes place, there is nothing to prevent his divesting himself of it, and making it over to the person who is to be his successor in the estate. You do not forbid the transfer of it. He may not sell it, and bargain for its sale, but in all cases of that sort it is possible that it may be considered in the price paid for the estate. I do not dispute that there are cases in which a man would say, "If I am to possess the estate I will give something more for the estate because I want the living." That would be quite an exceptional case, but, at any rate, it would not give rise to the scandal which the sale of an advowson at present does. The difficulty which the noble Earl suggested is not by any means a sufficient reason for not proceeding further with this reform. That is all I have to say about the first part of the Bill with regard to the sale of advowsons—that it seems to me that it might have excluded the sale of all advowsons, with some such equitable provision as I have already sketched out to your Lordships, if it be thought advisable that you should permit the sale in connection with an estate. It was one of the proposals made in one of the previous Bills—that you should allow the sale where it was sold in connection with, I think, no less than 100 acres of land in the parish. That was one way in which the difficulty was met, to which the noble Earl has alluded. I would far rather see it made in that way than on account of the difficulty arising in these cases—considering it as a means to deal thoroughly with 110 this question of the traffic in the rights of patronage to benefices. With regard to the second clause, I want to call attention to a result which cannot have been altogether foreseen when it was framed. This second clause allows the bishop torefuse to institute or admit a presentee to a benefice if, at the date of the vacancy, not more than one year has elapsed since a transfer, as defined by the first section of this Act of the right of patronage of the benefice, unless it be proved that the transfer was not effected in view of the probability of a vacancy within such year; or on the ground that at the date of the presentation not more than three years have elapsed since the presentee was ordained deacon.That is to say, if there has not been more than one year between the transfer and the vacancy, then the bishop may refuse to institute. Supposing a person presented within the year. The bishop refuses to institute. The patron appeals to the archbishop; the archbishop confirms his refusal. He presents somebody else, and the same process may be gone through, as far as I can see, any number of times, because the fifth section says:—In reckoning the date for lapse no account shall be taken of the period between a presentation by the patron and the refusal of the bishop to institute or admit the presentee; or the period between the refusal of the bishop to institute or admit, and the decision of the court upon such refusal.That is the decision of the archbishop's court. There is no lapse going on, and as soon as the archbishop has confirmed the refusal another presentation is made—the process goes on. How long the living is to be vacant I do not know, and what becomes of the unfortunate benefice which remains vacant because the bishop is unwilling to institute I do not know. I do not see that any provision is made to meet the objection in the Bill. The same objection applies to sub-section (b). By that subsection it is provided that the bishop may refuse to institute or admit—on the ground that at the date of the presentation not more than three years have elapsed since the presentee was ordained deacon.There, again, the same state of things arises. You have a presentee in whose case not more than three years have elapsed; the bishop refuses to institute, you appeal to the archbishop, you 111 have got a month for appealing, and the archbishop confirms the bishop's decision. Time is running on then, he is getting beyond the three years, and the patron may go on presenting, as far as I can see, the same person over and over again, and when the three years have elapsed the bishop would be bound to institute him, because he cannot then say that "not more than three years have elapsed since the presentee was ordained deacon." There is no provision that you shall not present the same man more than once, and it seems to me that the clause can be rendered entirely nugatory in that way. I thought it right, my Lords, to call attention to these defects, as I consider them, because it seems to me that the effect of these provisions must not be overlooked.
§ THE EARL OF CRANBROOK
The noble and learned Lord seems to have entered upon rather an academic discussion. He said at the beginning that he did not intend to oppose the Bill—nor has he opposed the Bill, nor has he suggested in what way he would make the Bill satisfactory. He attacked the sale of next presentations as much as he did the sale of advowsons, and yet he has coupled that attack with this reservation, that there ought to be two occasions on which the presentations might be allowed to lapse before the sale was forbidden. Now I cannot help thinking that these objections savour rather more of the attorney's office than of my very noble and learned Friend's higher views of the Chancery Court, a remark which also applies to his criticisms with regard to the sale of advowsons with an estate. The noble Earl has just put it as if the advowson is the chief thing, and is to be sold as an appendage to the land. That is obviously not what is meant. The advowson is to be sold in conjunction with the estate, and the manor, and the hereditaments. I do not know how lawyers might interpret it, but for my own part I assume they would take it to mean something in the nature of a manor. At any rate, that is one of the objections which I cannot think would be found to exist in practice. I repeat that the object of selling by public sale is for the estate and not for the advowson. That is the reason why people in the case 112 of large estates seek to sell them by public auction—that the advowson is an appendage to it.
§ THE EARL OF CRANBROOK
Yes; but in the case of a sale to which the noble and learned Lord adverted, I think it is a case of sale together with land—what he calls a hereditament. In these cases it is almost always the estate that is being sold, and the advowson is attached to it, and adds to the value of the property. I should like to know when we are considering certain duties which the noble Lord's Government imposed upon the country, whether the advowsons do not form a considerable part of the value of the estates, and while the State does not hesitate to take these duties, it also does not hesitate to take away the property on which they have been founded. This Bill goes as far, probably, as public opinion will go, and the only proposal with regard to the sale of advowsons is the one proposed by Lord Westbury—which proposal was for the sale of endowments to private patrons, and the money was to go for the increase of the livings. Thus you have the thing done openly and by Statute passed through both Houses of Parliament—that is the most recent Statute on the subject of sales enabling certain clauses of advowsons to be sold, and, as I believe, to great advantage. I am not going to enter into the question of private patronage or public patronage, but I venture to say this, that in looking back into the history of patronage of a public character—episcopal patronage, dean and chapter patronage, and other patronage—you will find that the private patronage of this country will bear fair comparison with it all, and that there are instances in connection even with episcopal patron, age, which would not bear so close an examination as many of the cases of private patronage. But that question is not before us, and the noble Lord opposite is not opposing the Bill on that ground. Nor do I understand that it is the intention of the noble Lord to move that it be extended in that direction. If it is his intention not to move for its extension in that direction, 113 then let us be thankful to have what we have, and after 24 years of waiting at least let us put something into operation which will relieve us from many of the great scandals and rid us of some of those evils of denature which have proved one of the greatest curses of the Church.
THE BISHOP OF WINCHESTER
In common with all your Lordships I listened with great interest to the speech of the noble and learned Lord who spoke a few minutes ago. I do not think the noble Lord does more than justice to himself when he claims to be one of those who took an active part in the early stages of the preparations made for arriving at the result which I hope we shall now at last attain. The efforts in this direction have been continuous for many years, and I can speak from my own personal knowledge of the active part taken a few years ago in our private consultations by the noble and learned Lord himself. I think that amid the tributes that have been borne to-night, and rightly borne, to the work of Archbishop Magee in bringing public attention to bear on this subject, we ought not to forget the yet greater work of Archbishop Benson. Year after year he brought this matter forward, and spent long months beforehand in working with others in preparing for the various Bills which were successively introduced, and if to Arch-bishop Magee is due the credit of having first focussed public opinion on this subject, to Archbishop Benson may be attributed the credit of having maintained that interest at a high level, and for having looked after the subject perseveringly from year to year. In regard to the noble and learned Lord's criticisms of the Bill, there are some of them with which I am personally prepared to agree; there are others which I confess I was surprised to hear from him. The argument, for example, which he used as to there being no difference between the sale of an advowson and the sale of the next presentation seemed to be to me false in this way. The difference, surely, lies in this, that in the case of the sale of an advowson it is, at all events, possible—nay, it is even probable—that the interest of the parishioners and not the interest of any individual may be foremost in the 114 purchaser's mind; but, in the case of the next presentation it is presumably in order that some individual may be appointed to the post that the purchase is made. I can hardly think of any other circumstances under which the next presentation is likely to be bought, and this seems to me to lie at the root of all our proposed legislation. In regard to the point upon which the noble Lord dwelt at some length—the possibility, under clause 2, that a long series of bad presentations might be made with the intention that in the interval that arises between these presentations the young candidate who was to be presented might grow to mature years—I wonder whether the noble Lord considered what had to be done in order to carry out his idea. First of all, there must be a series of unfit men provided who are to be brought forward one after another—
THE BISHOP OF WINCHESTER
And in case of an appeal the costs follow, and would have to be paid time after time by the patron whose nominee is again and again rejected. But these are mere details, and, my Lords, I would rather say a word or two about the Bill as a whole. To-night is to some of us, who have watched and cared for these things for many years, a somewhat memorable night, because we have come within reach of the fruit of what has been the unfructuous labour of so many sessions. The fact that Bill after Bill—amounting to nineteen or twenty in all—has been presented on this subject, and that there have been Select Committees and Royal Commissions deliberating over and over again about some such Measure, has at all events had this advantage, that the matter has been thoroughly thrashed out from all points of view, from side to side, and from top to bottom, and to-night we have the product of the immense amount of thought which has been spent in considering the subject—a product which, I believe, will thoroughly stand the test. Personally, I believe that this Bill goes as far as public opinion is yet prepared to go. For my own part, I agree with the noble and learned Lord in desiring that the time may come when we shall 115 see the sale, not only of next presentations, but of advowsons absolutely abolished, but the day, I feel, is not come yet. We have been looking for it for long. It is many years ago since a bishop, the senior in years among all those now on the Bench, said—I hold that the sale of livings deserves unmitigated condemnation, and ought to be clean swept away. The thing is an offence in God's sight, and a blot on the character of the Church of England.I am not sure that I could personally use such strong language on the matter, but while I believe in the main the principle is a sound one, I am convinced that we have not nearly reached the stage at which public opinion would enable us to effect so drastic a change. I realise, too, that there is not a little to be said upon the other side. It is because I believe in the enormous value resulting to the Church from the existence of private patronage that I want to see abuses of this kind swept away. It has been said that Bills of this sort are an attack upon the rights of the private patron. I do not believe that they are. I believe that Bills such as this are the best security for the private patron. It is by removing the abuses which attend the sales of advowsons that the legitimate rights and privileges of the private patron will be placed upon a firmer basis than they have ever yet stood upon. This Bill can do no harm at all to the private patron who desires to exercise his trust in a proper way. It is simply with the object of preventing those who desire to exercise their rights in an improper way from doing so that these provisions are inserted, and I trust and believe they will be effective. To the first part of the Bill, which deals with presentation and with the bishops' refusal to institute, there are, I suppose, two lines of objection. One has been alluded to to-night, the other has not. The first objection is that it interferes with the rights of patrons; the second is, that it increases the power of the bishops. So far as regards the interference with the rights of patrons, I agree with the words of the noble Earl who introduced the Bill to-night, when 116 he said that the property is incidental to the trust, and not the trust to the property. Whatever else the ownership of an advowson is, it is a trust for the public good. In what way can the provisions of this Bill be supposed to injure those who desire to exercise that trust in a right manner? It is said, first, that we are fettering the discretion of the patrons. Not so; we are helping the patron who desires to execute his trust rightly to have a really trustworthy investigation. We are doing for the patron that which he finds is difficult to do for himself; we are helping him to reject the unworthy man, and to find the man he desires to find—that is, the man best fitted for the benefice to which he desires to appoint. Then we are told that it will decrease the sale-value of advowsons. I do not care if it does. If that be so, it is because the advowson has acquired a fictitious value owing to the facility with which the patron can, if he likes, evade the law. The law has laid it down that a man shall not be able to buy an advowson or presentation with immediate possession. The Bill is intended to render impossible what has, by the exercise of a little evasion, been quite easy in the past. I venture, with great respect, to differ a little from the most reverend prelate in what he said as to the sale of advowsons having very largely decreased. I have here with me a list—the latest edition of the circular pamphlet issued by the principal agent in these matters. It is prefaced by a plaintive appeal as to the harm which will be done to his cause and to his clients by the passing of this Bill, and he goes on to show by the list of advowsons and next presentations that he has for sale that we are far indeed from having reached the point in which a Bill like this is unnecessary. He now advertises some 230 benefices and next presentations. He has himself told us in the evidence he gave before the Royal Commission that the vast majority of those, however they may appear in the eye of the public, are practically sales of presentations with immediate possession—the very thing the law intends to prevent, or, at all events, to hinder. His 117 own words before the Royal Commission are—Three-quarters of my transactions are with immediate possession, and, strictly speaking, they are nearly all illegal.And then a little later he says—The reason for secrecy is this: the centre point of simony is the immediate possession.Now, it would be very much more difficult to flout the law in that way if, as I trust will be the case before many weeks are over, this Bill had passed your Lordships' House, and had become the law of the land. It is not the rights of property but the wrongs of property, if I may so call them, that the Bill will damage if it passes in its present form. Then it has been said, and said very loudly, that the Bill is mischievous because of the increase of the power it places in the hands of the bishops. It is perfectly true that the Bill gives the bishops some increase of power—that is, an increase of responsibility, though not, I am glad to say, of patronage. That responsibility is a burden which the House and the country desire that the bishops shall carry. What are the bishops for but to exercise responsibility? It is what we are called to do, and what we mean to do if you place these new duties in our hands and give us the power of discharging them. We are not afraid of accepting responsibility. Bishops have to live and act under a fierce light of public criticism. We know that if the power be exercised wrongly in the case of an individual bishop by his refusing a duly qualified presentee, the Bill gives the presentee a right of appeal. We are not afraid of exercising the responsibility which the Bill desires to lay upon us. We ask the House and the country to strengthen our hands in the endeavour to safeguard the threshold of the entry upon the cure of souls, because it is there that the real peril lies. Once a man has crossed the threshold and been inducted to his benefice, he may go very far astray without it being possible for us to remove him or pull him up. Every bishop knows how he has received letters time after time, complaining of the inefficiency or the wrongdoing of this man or that; and, as a general rule, the ending of the letter is—Whatever happens, do not mention my name";118 And then, a few weeks later, we find that our correspondent has been saying—The bishop has all the facts in his possession; why on earth does he not act? It is just like those bishops, just what they always do!This is a mere commonplace which is within the daily experience of all of us. What we try by this Bill to do is to safeguard the threshold of entry upon the cure of souls. Do that, and the perils that follow will be far less than they are now, because we shall be able to check at the outset that which might have become an unrestrained evil if we had allowed that threshold to be crossed. One word about the second part of the Bill. There was great difficulty some years ago in regard to the provision inserted in one of the former Bills, which appeared to result in this, that an old man, simply because he was old and weak, might conceivably be turned adrift on no other ground than that he was not able to do what he had been able to do 20 years before. I think that danger was very greatly exaggerated. The discretion lay with the bishop, and his responsibility would have been exercised for the protection of such a man. Whether that provision was a wise one or not, it has now gone, and therefore that difficulty which encumbered the question before does not now beset us. The Church and people of England, so far as we can judge, want the bishops to have the extra power this Bill confers, and, as I said before, we will do our best to use it. There is danger in all discussions of this kind lest we seem to imply that our scandals—the wrong-doings that exist among the clergy—are greater and more numerous than they are. They are real, but they are few, and the reality of them is what calls for this Bill. It would be a sad thing indeed if it were to be supposed that we were parading these scandals as things of constant and daily occurrence. I believe there is no body of men in the world so large in number—we have in the Church of England 25,000 clergymen—in whom moral wrong-doing is as rare as it is among the clergy of the Church of England, and the reports which gain currency, sometimes from lack of information, sometimes from malice, 119 are often worth running to ground, because it will be found how feeble and false they are. A year or two ago, for example, I noticed in the Press a letter in which the statistics of the criminal wrong-doing of the clergy of the Church of England as actually proved in Court during a single twelvemonth were elaborately tabulated, amounting to some 300 gross cases of moral misdemeanour or criminal conduct; and the writer gave at the bottom, what the newspapers would call a guarantee of his good faith, his full name and address. I wrote to him, and asked him for information as to the statistics upon which his table was based. After some little delay I received my letter back again. It had wandered all over England—no such person was known. I wrote to the editor of the newspaper, but owing, as I was afterwards told, to a change of editorship, no notice whatever was taken, and many other papers continued to copy those so-called statistics. I will give one more instance. Only a few months ago I saw a strange statement, bluntly and plainly made, that at a gathering for the relief of decayed sandwich-men in East London, it was discovered that a considerable portion of them—half at least—had once been in orders in the Church of England. I wrote to the editor of the newspaper, and with a candour which I had hardly anticipated he favoured me with his grounds, and they were these: that a correspondent told him that he remembered once hearing it said in the smoking-room of a club that of those present at an entertainment of the kind described, a large number of men had been clergy of the Church of England. I simply notice these things to show how often it is the case that scandals which become current, if traced, are found to be devoid of foundation, and it would be a sad thing if it were to be supposed, because we are dealing in this Bill with wrong-doings, that those wrong-doings are many. I hope that your Lordships will read this Bill a second time to-night. Among the infinite varieties of opinion upon subjects, sacred and secular, which are to be found among the clergy and laity of England, there is practical unanimity in asking for this Bill, and the clergy of the Church of England, and I fully believe the people 120 of England also, trust to your Lordships to give it a Second Reading.
THE EARL OF KIMBERLEY
With regard to the criticisms which have been made upon the observations of my noble and learned Friend beside me, I think they were hardly deserved, because what he pointed out was that in framing the Bill there were loopholes left, which would lead to results which everyone would entirely deplore. That was the whole object of his criticism, and it was not mere carping criticism. It was made with the view of pointing out that if certain portions of the Bill were not amended it would not be as efficient as its supporters would desire it to be. Turning to what the right reverend prelate has said, I heard with considerable pleasure one of his later remarks, in which he said that for his own part, and I think he added that it could be said for others in his high position, he would not shrink from the responsibility of carrying into effect the provisions of this Bill in regard to inefficient and unworthy clergymen, if it should pass into law; and he further made this remark, which struck me as exceedingly to the purpose, that it was best to stop these evils at the threshold. I do not wish to import into this discussion subjects which are not in touch with the Bill, but I may say that I am convinced that on the part of the laity—and it is for the laity, let me observe, that the Church exists—there has been a feeling that those who are entrusted with high positions in the Church have not taken upon themselves all the responsibility which they ought to have taken, and that in many respects they have not interfered at the threshold with evils which have grown up further than they would have grown if they had interfered at the proper time. My Lords, the Bill gives an opportunity which I greatly welcome, by notice being given to the churchwardens of the parish of the intended appointment of a clergyman, of enabling those who may have anything to allege against the appointment to make these allegations—an opportunity and a provision which, I think, will be most valuable. In that respect I think the Bill is exceedingly useful; but, my Lords, the Bill, whilst it stops negligence in the performance of ecclesiastical duty, 121 carefully excludes from that negligence a considerable portion of the duties of the clergymen, and those portions consist of those duties which should be so performed by the clergyman that in their performance he shows whether he is a loyal and true member of the Church of which he forms a part. My Lords, I am not at all disposed, in mentioning this matter, to press what may be called, if your Lordships will forgive me for so calling it, the high Protestant view too far. I am quite certain that any who have paid any attention to the history of the Church of England, and all who look at it fairly and with an unbiased spirit, must, whatever their personal opinions may be, be well aware that the original foundation of the Reformed Church was so made as to leave a very large and wide liberty within the Church to those who might hold opinions which were somewhat divergent to each other. It always seems to me that that is to the best interests of the Church of England, and if you depart from the original compromise, and draw too tightly either way the bonds which are laid upon the clergymen, I do not believe that the Church of England would continue very long to exist. But, on the other hand, there is very great danger lest in certain matters, to which I do not wish to refer especially, you should stir up a feeling in the laity of serious discontent, and I am quite certain that the right reverend prelates must be aware that it is especially in the rural parishes that this feeling most exists. Of course, in the large towns, where there are a great number of places of worship, it is easy to find places of worship which, are congenial to the opinions of any church worshipper, but in a rural parish, if it so happens that a clergyman—no doubt, probably, a perfectly conscientious man, and, being a conscientious man, believing that it is his duty to do so—introduces certain changes which are unsatisfactory to his parishioners, I can assure the right reverend prelates that I do not think they can calculate the injury done to the Church and the injury done to religion, which is of more importance than the Church, when such things as that occur. I have known myself of a case some years ago, when practices which I have in my 122 mind were by no means carried so far as they are now. A very worthy clergyman, because he neglected the feelings of his parishioners, which happened to be in the direction of the stronger Protestant feeling, created a state of things in that parish which was most detrimental to religion, and most unfortunate in every possible way, and it led to the secession of a great part of the parishioners for a long period of time. That might have been avoided if the bishop had been in a position to take care that the clergy who are appointed are, on the whole, men congenial to the parishioners whose interests are to be committed to their charge. This always seemed to me to be the duty of a patron, independent of any personal view he may have, to select a clergyman who is likely to be most acceptable to the parishioners with whom he is to be connected. That seems to me to be one of the most essential and important duties of a patron, and a duty which I believe a conscientious lay patron is well adapted to perform. He is likely to know what is the temper of the people in his parishes, and I can assure those who are not well acquainted with the inhabitants of some of our rural parishes that they can scarcely be aware how dangerous it is to tamper seriously with the views that they hold. There are many attached members of the Church who through certain practices, although they do not create anything but a feeling of indignation and of dissatisfaction in these parishes, feel that they are very prejudicial to the interests of religion. I have ventured to make these few observations, and I have founded them upon that particular remark of the right reverend prelate, without which I do not know that I should have said anything at all, and it is for this reason that I trust that those who are at the head of the Church will take courage, and will endeavour to do all that they can, in their high office, to prevent an extension of practices which, no doubt, are exaggerated, which do not probably exist to the extent which some persons represent them, but which still have created a feeling of disquietude and a feeling which I am sure every member of the Church in this House would desire not to see prevail any further. I have made these observations in perfect good faith. I 123 will not, for one moment, disguise that that which I am about to state is a mere opinion which has no practical effect, but I do not believe that, speaking generally, it is a permanent advantage to the Church to be connected with the State. But that is not the question before us now. The question of the disestablishment and disendowment of the Church is not a practical question at the present moment in this country, and whilst the Church exists, whatever may be one's opinion, in the cause of that which every right-minded man must cherish, the cause of religion, this we must desire—that the Church should be so administered as to give contentment to the people of the country, and to do the work committed to it in the most efficient and satisfactory manner.
THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS
It is impossible to listen to the remarks of the noble Earl without feeling that they are of a character which, in their scope and in the strictly studied moderate language in which he expressed them, will excite the sympathy not of one side only of your Lordships' House. The danger to which he has pointed is a real danger. There is—I do not think it exists very largely—a certain alienation from the Opinions of the Church of England which is deeply to be lamented. I will not go so far as to express any opinion at all equal in strength to those which I have seen expressed elsewhere. To my mind, many of the opinions on which excitement has arisen are on trivial matters, on which, on one side or the other, I should not have thought it was worth while for Christian men to quarrel. But they have caused a very serious objection on the part of many of the members of the Church of England, especially in the remoter districts of the country, and it seems to me, as it does to the noble Lord, to be one of the most important duties of the bishops to exert themselves so far as they can, by the exercise of the power they possess, to bring the clergy more into harmony with the population in those places than at present exists. But I demur to the blame being cast upon the bishops. There is one important matter which the noble Lord has passed over, and which was so vulgar 124 that the bishops themselves could not mention it, but which I can allude to; and that is the frightful cost incurred in getting rid of a clergyman who has broken the ecclesiastical law—not only with respect to the matters not dealt with in this Bill, to which the noble Lord referred, but also with the matters which are dealt with in this Bill. It is, really a heavy undertaking to rid his diocese of men who are a disgrace to the Church and a serious impediment to all spiritual administration. I remember a case—the noble and learned Lord will remember it very well—which happened in a district with which I am acquainted. The bishop issued whatever process was necessary to set the machinery in motion for getting rid of a drunken parson, The evidence was, in the first instance, thought to be sufficient, and the bishop passed the requisite condemnation. It was appealed against, and the evidence in the Privy Council was thought not to be sufficient. I think that the Privy Council only had the printed depositions before them, and did not have the witnesses examined before them, but that is, of course, not a matter with which I am dealing and is Outside the question. The point is this, that in doing what was absolutely his duty, which was no profit or pleasure or advantage to the bishop whatever, he was loaded with costs to the extent of £1,600. How are you to expect, if your law is constructed in this manner, that with these tremendous fines the bishops can perform their duties, and that the law, however excellent it may be, can be adequately put in force by men of whom you require so vast a sacrifice? I believe that the existence of this state of the law is not entirely accidental. We are dealing in the whole of this Bill with two popular currents running in opposite directions. The noble and learned Lord called our attention to the fact, which I believe is absolutely correct, that in no other case is any office with an emolument appoint-able for money. But that is the survival of a very extensive system, when in all parts of the State large numbers of offices were, according to the ideas of the time, purchasable for money. In all other cases the steady trend of opinion, which has run ever against a system of that kind, has removed 125 such blots from every other portion of our civil or ecclesiastical dominion. But in this case there has been a formidable impediment. It has been called attention to more than once in this Debate; it is a curious state of feeling which exists with respect to the episcopal office in this country. I believe that the bishops at the present time, more perhaps—certainly as much as at any previous period—command the affection and the respect of the laity by their high character and their devotion to their work; but, greatly as the bishops are respected, there still lingers behind a dread and distrust of the episcopal office which prevents us from putting it to the purpose for which it really exists. We have no discipline in the Church of England. It is quite true that whether in morals, in efficiency, in doctrine, or in ritual, there is no discipline in the Church of England; and why is that? In any other department you would say that proper powers must be vested in the superiors. If you want discipline in public offices, you have to give great powers to the head of an office; if you want discipline in the Army, you must give great powers to the colonel or to the commander-in-chief; if you want discipline in the Bar, you must place great powers in the hands of the Benchers of the Inn; if you want discipline amongst solicitors, you give to the courts the absolute power of crushing them by removing them from the rolls. But at the Church you stop—you give no powers to the bishops, and the two popular currents have met each other—the public distrust, not of the bishops themselves, but of the episcopal office, meeting that unhappy remnant of bygone error in another age, which allows spiritual functions to be sold and bought for money. My Lords, I believe this Bill is a step forward out of this unhappy state of mind; it is distinctly an increase of the power of the bishops, but I do not accept it as an end of the journey which we must ultimately take in that direction. If you mean to have better discipline in the Church, to have the laws more fully observed, to have greater security among the laity against any arrogance or excess of power or deficiency of devotion on the part of the clergy, you must entrust more 126 power to the bishops, and put aside the prejudice which has prevented the growth of this movement; and men will see that they cannot have the Church governed as we should wish it, and as a Christian Church should be, and all the duties of the Church properly performed by those to whom they are entrusted, unless you will give to the bishops a power, I do not say equal, but in some degree corresponding to the power you give to the superiors in every other department of activity, where duties have to be performed to the community or to the State. My Lords, to my mind, the most important part of this Bill is that it is a step forward in a direction that we must follow. I do not agree with many criticisms of the noble and learned Lord. I think that all he said about the sale of advowsons, though it may be logically correct, is absolutely inconsistent with that institution of private patronage which, as we believe at this present day, public opinion is decidedly favourable to maintaining. So long as you have private patronage, I think you must, to a certain extent, tolerate the sale of advowsons. After all, you always talk as if the possession of patronage was an advantage. I am bound to say, having some little experience of it, that I consider it is an intolerable nuisance, and I want to know what right you have, to fasten upon me and upon my descendants this function, giving me none of the ordinary powers of getting rid of it, that is possessed in any other hereditament. This power is fastened upon us; but I do not believe that you can have a hereditament that you cannot sell; you may attach conditions to it, but you must allow persons to get rid of it if they like. You cannot prevent a man from withdrawing himself from the burden of it if he feels it to be a burden, and when you once allow transfer, sale is not very far off. It would be perfectly impossible to forbid the sale so long as you permit a transfer. I do not believe that the evil of selling advowsons, so far as it is left by this Bill, is a practical evil. It has been said more than once this evening that what we are dealing with is a scandal. The great scandal which gives offence to men is the sale of the next presentation. The sale of advowsons merely in connection with other land 127 existing in the parish, whether it is logically right or wrong, is not a thing which offends the mind or the conscience of the country. Let us go as far as necessary for the purpose of clearing the Church of the admitted blot, and let us leave to the solution of other times problems which are really academical in themselves, warned by our own experience of the length of labour which any removal of any deficiency or defect in the ecclesiastical laws requires. When I first came in this House, 28 years ago, this question was then a burning question. I am very glad that so far we are able to part with it, but I should be very sorry to begin another pilgrimage for the attainment of a similar end in respect of matters which really do not require the interference of Parliament, in order to remedy any evil that has been proved to exist.
THE BISHOP OF SALISBURY
I do not wish to continue this Debate, but I would venture very humbly to ask the noble Marquess who has just sat down in what sense he used the words "there is no discipline in the Church"?
THE PREMIER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS
I did not say there was absolutely none, but I said there was not nearly enough.
THE BISHOP OF SALISBURY
If the noble Marquess had said there was no military discipline in the Church, it would have been true; but I confess I find myself in a position in which I am constantly called upon to exercise discipline, whether I like it or not, and I very humbly venture to protest against the latitude with which that proposition was stated.
§ Bill read a second time, and committed to a Committee of the whole House.